[Federal Register Volume 60, Number 226 (Friday, November 24, 1995)]
[Rules and Regulations]
[Pages 57906-57907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28697]



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DEPARTMENT OF AGRICULTURE
7 CFR Part 966

[Docket No. FV95-966-2IFR]


Tomatoes Grown in Florida; Exemption of Specialty Packed Red Ripe 
Tomatoes From Container Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule exempts shipments of specialty packed 
red ripe tomatoes from the container net weight requirements in the 
Florida tomato handling regulation. This exemption was unanimously 
recommended by the Florida Tomato Committee which locally administers 
the marketing order. This rule will allow handlers to ship specialty 
packed red ripe tomatoes in containers with different net weights than 
those currently authorized under the order. This will facilitate the 
movement of such tomatoes, further the development of this relatively 
new market, and is expected to improve returns to producers of Florida 
tomatoes.

DATES: Effective November 24, 1995; comments received by December 26, 
1995 will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent in triplicate to the Docket 
Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S, PO Box 
96456, Washington, DC 20090-6456. All comments should reference the 
docket number and the date and page number of this issue of the Federal 
Register and will be made available for public inspection in the Office 
of the Docket Clerk during regular business hours.

FOR FURTHER INFORMATION CONTACT: Aleck Jonas, Southeast Marketing Field 
Office, Fruit and Vegetable Division, AMS, USDA, PO Box 2276, Winter 
Haven, Florida 33883-2276; telephone: 941-299-4770, or FAX: 941-299-
5169; or Mark Kreaggor, Marketing Specialist, Marketing Order 
Administration Branch, F&V, AMS, USDA, room 2522-S, PO Box 96456, 
Washington, DC 20090-6456: telephone: (202) 720-2431, or FAX: 202-720-
5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 125 and Order No. 966 (7 CFR part 966), both as amended, 
regulating the handling of tomatoes grown in Florida, hereinafter 
referred to as the ``order.'' The order is effective under the 
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), hereinafter referred to as the Act.
    The Department of Agriculture (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule will not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with the Secretary a 
petition stating that the order, any provision of the order, or any 
obligation imposed in connection with the order is not in accordance 
with law and request a modification of the order or to be exempted 
therefrom. A handler is afforded the opportunity for a hearing on the 
petition. After the hearing the Secretary would rule on the petition. 
The Act provides that the district court of the United States in any 
district in which the handler is an inhabitant, or has his or her 
principal place of business, has jurisdiction in equity to review the 
Secretary's ruling on the petition, provided a bill in equity is filed 
not later than 20 days after the date of the entry of the ruling.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Administrator of the Agricultural Marketing Service 
(AMS) has considered the economic impact of this action on small 
entities.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 75 handlers of tomatoes who are subject to 
regulation under the marketing order and approximately 90 producers of 
tomatoes in the regulated area. Small agricultural service firms are 
defined by the Small Business Administration (13 CFR 121.601) as those 
having annual receipts of less than $5,000,000, and small agricultural 
producers are defined as those whose annual receipts are less than 
$500,000. The majority of handlers and producers of Florida tomatoes 
may be classified as small entities.
    Under the Florida tomato marketing order, tomatoes produced in the 
production area and shipped to fresh market channels outside of the 
regulated area are required to meet certain handling requirements 
specified in Sec. 966.323. Current requirements include a minimum grade 
of U.S. No. 3 and a minimum size of 2\8/32\ inches in diameter. Pack 
and container specifications are also in effect. In addition, all lots 
are required to be inspected and certified as meeting these grade, 
size, pack and container requirements by authorized representatives of 
the Federal or Federal-State Inspection Service. The regulated area is 
defined as the portion of the State of Florida which is bounded by the 
Suwannee River, the Georgia border, the Atlantic Ocean, and the Gulf of 
Mexico. Basically, it is the entire State of Florida, except the 
panhandle. The production area is part of the regulated area.
    This interim final rule revises paragraph (d) of Sec. 966.323 to 
allow handlers to ship specialty packed red ripe tomatoes exempt from 
the container net weight requirements in Sec. 966.323(a)(3)(i) and 
defines such tomatoes in paragraph (g) of Sec. 966.323. This exemption 
is the same as the exemption currently provided for yellow meated 
tomatoes in paragraph (d) of Sec. 966.323. The specialty packed red 
ripe tomatoes will still be subject to all other provisions of the 
handling regulation, including established grade, size, container 
marking, condition and inspection requirements. The Florida Tomato 
Committee (committee) met September 7, 1995, and unanimously 
recommended this exemption.
    Section 966.52 of the Florida tomato marketing order provides 
authority for the modification, suspension, and termination of 
regulations. Section 966.323(a)(3)(i) currently requires certain types 
of tomatoes packed by registered handlers to be packed in containers of 
10, 20, and 25 pounds designated net weights. The net weight of the 
contents cannot be less than the designated weight and cannot exceed 
the designated weight by more than two pounds. Section 51.1863 of the 
U.S. 

[[Page 57907]]
Standards for Grades of Fresh Tomatoes (7 CFR 51.1855 through 51.1877, 
hereafter referred to as the ``standards,'') applies.
    Specialty packed red ripe tomatoes are a product recently available 
from Florida. They are shipped in relatively small volume and marketed 
as a specialty item.
    This rule defines specialty packed red ripe tomatoes as tomatoes 
which, at the time of inspection, are light red (#5 color) or red (#6 
color) according to color classification requirements in the standards, 
have their calyx ends and stems attached, and are cell packed in a 
single layer container.
    Cell packed tomatoes are placed in containers with fiber board on 
plastic compartments for such tomatoes to provide separation and reduce 
bruising during transport and handling. This is especially important in 
shipping tomatoes at an advanced stage of ripeness when tomatoes have 
their calyx ends and stems attached. The separation provided by the 
individual compartments permits the tomatoes from moving around inside 
the shipping container during transport and handling, thus ensuring 
arrival at destination with tomato calyx ends and stems attached and no 
tomato stem punctures.
    Most tomatoes shipped from Florida are shipped at the mature green 
stage without calyx ends and stems, and are packed in volume fill 
containers. When volume fill containers are packed, the tomatoes are 
placed by hand or machine into the container until the required net 
weight is reached. Mature green tomatoes are not as susceptible to 
bruising and other damage during transport as red ripe tomatoes. These 
specialty tomatoes have to be packaged so that they do not touch each 
other. If volume fill containers were used by registered handlers in 
Florida to ship specialty tomatoes, serious product bruising and stem 
punctures would result, which would detract from the unique appearance 
and marketability of these tomatoes.
    However, the cell pack method of packaging needed to ensure that 
these specialty tomatoes arrive at markets in good condition does not 
lend itself well when packing to meet a required net weight. Normally, 
such packs are used when the product is packed by count per container. 
The tomatoes have to be properly sized to fit snugly in the container.
    During the harvesting season, the weight of equal size tomatoes or 
the shape of tomatoes of equal weight may vary dramatically. If the red 
ripe tomatoes are light in weight, handlers cannot add extra tomatoes 
because all cells are full, or if the tomatoes are heavier than normal, 
the removal of a tomato by a handler results in an empty cell. Because 
the buyer expects a full tray, empty cells are viewed suspiciously and 
a marketing problem results.
    To overcome this problem and allow this market to be further 
developed, the committee unanimously recommended that shipments of 
specialty packed red ripe tomatoes as defined herein, be exempt from 
the container net weight requirements of the order. As stated earlier, 
all other order requirements will apply to such shipments.
    This rule reflects the committee's and the Department's appraisal 
of the need to exempt specialty packed red ripe tomatoes from the net 
weight requirements for tomatoes grown in Florida. The Department's 
view is that this action will have a beneficial impact on producers and 
handlers since it will allow tomato handlers to make additional 
supplies of tomatoes available to meet consumer needs consistent with 
crop and market conditions.
    Based on these considerations, the Administrator of the AMS has 
determined that this action will not have a significant economic impact 
on a substantial number of small entities.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other available information, it is 
found that this interim final rule, as hereinafter set forth, will tend 
to effectuate the declared policy of the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect and that good cause exists for not postponing the effective date 
of this rule until 30 days after publication in the Federal Register 
because: (1) This action provides an exemption to container 
requirements currently in effect for tomatoes grown in Florida; (2) 
Florida tomato handlers are aware of this action that was unanimously 
recommended by the committee at a public meeting, and they will need no 
additional time to take advantage of the exemption; (3) Florida tomato 
shipments are currently in progress; and (4) this rule provides a 30-
day comment period and any comments received will be considered prior 
to finalization of this rule.

List of Subjects in 7 CFR Part 915

    Marketing agreements, Reporting and recordkeeping requirements, 
Tomatoes.

    For the reasons set forth in the preamble, 7 CFR part 966 is 
amended as follows:

PART 966--TOMATOES GROWN IN FLORIDA

    1. The authority citation for 7 CFR part 966 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

    2. Section 966.323 is amended by revising paragraph (d)(1) and the 
first sentence in paragraph (g) to read as follows:


Sec. 966.323  Handling regulation.

* * * * *
    (d) Exemption--(1) For types. The following types of tomatoes are 
exempt from these regulations: Elongated types commonly referred to as 
pear shaped or paste tomatoes and including but not limited to San 
Marzano, Red Top, and Roma varieties; cerasiform type tomatoes commonly 
referred to as cherry tomatoes; hydroponic tomatoes; and greenhouse 
tomatoes. Specialty packed red ripe tomatoes and yellow meated tomatoes 
are exempt from the container net weight requirements specified in 
paragraph (a)(3)(i) of this section, but must meet the other 
requirements of this section.
* * * * *
    (g) Definitions. Hydroponic tomatoes means tomatoes grown in 
solution without soil; greenhouse tomatoes means tomatoes grown 
indoors; and specialty packed red ripe tomatoes means tomatoes which at 
the time of inspection are #5 or #6 color (according to color 
classification requirements in the U.S. tomato standards) with their 
calyx ends and stems attached and cell packed in a single layer 
container.* * *

    Dated: November 20, 1995.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 95-28697 Filed 11-22-95; 8:45 am]
BILLING CODE 3410-02-P